United States v. Lashaun Bolton , 858 F.3d 905 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4077
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LASHAUN CHRISTOPHER BOLTON,
Defendant - Appellant.
No. 16-4078
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LASHAUN CHRISTOPHER BOLTON,
Defendant - Appellant.
Appeals from the United States District Court for the Middle District of North Carolina,
at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:15-cr-00243-WO-1;
1:14-cr-00433-WO-4)
Argued: May 11, 2017 Decided: June 7, 2017
Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge
Niemeyer and Judge Motz joined.
ARGUED: Cheryl Denise Andrews, HOLTON LAW FIRM, PLLC, Winston-Salem,
North Carolina, for Appellant. Sandra Jane Hairston, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Ripley
Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
2
THACKER, Circuit Judge:
Lashaun Christopher Bolton (“Appellant”) appeals his consolidated sentence for
convictions in two separate cases -- one involving marijuana distribution and the other
involving cocaine distribution. Following his indictment and arrest on the marijuana
charges, law enforcement discovered firearms, cash, and more marijuana in Appellant’s
bedroom. Then, while released on bond for the marijuana charges, Appellant was
arrested on the cocaine charges.
At the consolidated sentencing hearing, Appellant attempted to show that the
firearms were connected to hunting in order to avoid a sentence enhancement for
possessing a firearm in connection with drug distribution. But the district court rejected
this claim and applied the enhancement. Next, although Appellant sought an offense-
level reduction given his lack of criminal history, the district court also rejected this
argument, holding Appellant was ineligible for the reduction because he possessed a
firearm in connection with his offense. Additionally, given Appellant’s arrest while
released on bond, the district court refused to reduce Appellant’s offense level for
acceptance of responsibility, despite cooperation he provided the Government. Finally,
the court varied upward from Appellant’s Sentencing Guideline range by 40 months.
Appellant now challenges each of these sentencing determinations. Finding no
reversible error, we affirm.
3
I.
A.
On November 24, 2014, a grand jury in the Middle District of North Carolina
returned a multi-count indictment charging multiple defendants, including Appellant,
with conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1)
(the “Marijuana Indictment”). Specifically, the Marijuana Indictment charged Appellant
with conspiring to distribute marijuana and using a communication facility to facilitate
the conspiracy. On December 4, 2014, Appellant was arrested pursuant to the Marijuana
Indictment. He consented to a search of his residence. During the search, a 12-gauge
shotgun and 22-250 bolt action rifle were discovered in Appellant’s bedroom along with
boxes of ammunition, approximately 400 grams of marijuana, and $912 in cash. A
records search indicated that the shotgun was reported stolen. On December 16, 2014,
Appellant was released on bond.
On February 25, 2015, Appellant pled guilty to conspiracy to distribute marijuana
and using a communication facility to facilitate drug trafficking per the Marijuana
Indictment. The factual basis in support of the plea agreement stated that throughout
September 2012, law enforcement intercepted cellular phone calls between Appellant and
another individual indicating that the two conspired to distribute around eight pounds of
marijuana “during the period alleged in the indictment.” J.A. 44–47. 1 The conspiracy
1
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.
4
alleged in the indictment lasted “[f]rom in or about 2012, continuing up to and including
in or about February 2013.” Id. at 15. 2 Following the guilty plea, the district court also
granted Appellant’s motion to modify his terms of release to remove an electronic
location monitor so as to allow him to return to work. The court scheduled a sentencing
hearing on the Marijuana Indictment for June 3, 2015.
B.
On April 18, 2015, Drug Enforcement Administration agents discovered Appellant
was involved in cocaine distribution. As a result, on April 21, 2015, the court revoked
Appellant’s bond and issued a warrant for his arrest. Two days later, on April 23, 2015,
Appellant surrendered to law enforcement. After Appellant’s surrender, on May 6, 2015,
he met with law enforcement for debriefing and provided information about the other
individuals involved in the cocaine distribution. On May 18, 2015, the district court
continued Appellant’s sentencing for the marijuana charges to August 26, 2015.
On June 30, 2015, while Appellant was awaiting sentencing on the marijuana
charges, a grand jury in the Middle District of North Carolina returned a second
indictment against Appellant and other defendants, charging them with conspiracy to
distribute 500 grams or more of a substance containing cocaine hydrochloride, in
violation of 21 U.S.C. §§ 846 and 841 (the “Cocaine Indictment”).
2
On September 17, 2012, law enforcement stopped a vehicle in which Appellant
was a passenger for a traffic violation. See J.A. 46. Law enforcement discovered 428
grams of marijuana in the vehicle along with $5,942 in cash on Appellant’s person;
Appellant was arrested after admitting the marijuana was his. See id.
5
On August 7, 2015, Appellant pled guilty to the Cocaine Indictment. The factual
basis for Appellant’s plea provided that on April 16, 2015, Appellant sold 3.4 grams of
marijuana to an individual working as a confidential informant and offered to sell the
individual a kilogram of cocaine hydrochloride. Then, over the next two days, Appellant
facilitated a transaction of two kilograms of cocaine to an undercover officer.
C.
The district court consolidated Appellant’s marijuana and cocaine cases and set a
sentencing hearing for January 12, 2016. Pursuant to the United States Sentencing
Guidelines (the “Guidelines”), the presentence report (“PSR”) grouped Appellant’s
offenses to arrive at a base offense level of 30, established by the amounts of drugs
attributable to him. The PSR added two offense levels for possession of a firearm during
the offense, and two offense levels for maintaining premises for drug distribution. The
PSR did not recommend a downward adjustment for acceptance of responsibility because
Appellant did not withdraw from criminal activity after his release on the marijuana
charges. The PSR thus arrived at a total offense level of 34.
At the consolidated sentencing hearing, Appellant objected to the proposed drug
amounts attributable to him as well as to the enhancements for firearm possession and
maintaining premises for drug distribution. Appellant also objected to the PSR’s failure
to propose downward adjustments for acceptance of responsibility or for a “safety valve”
6
reduction, which allows departures from otherwise mandatory sentences for qualifying
first-time offenders. United States v. Fletcher, 74 F.3d 49, 56 (4th Cir. 1996). 3
In response, the Government presented testimony from an investigating agent to
substantiate the amount of drugs attributable to Appellant. To rebut the firearm
possession enhancement and support a safety valve reduction, Appellant called his
cousin, Santonio Bolton (“Santonio”), who testified that the firearms were for hunting
purposes. To corroborate Appellant’s hunting scenario, Santonio testified that he grew
up hunting with Appellant, and that Appellant acquired the guns in question during
hunting season. Santonio also testified that the rifle belonged to another cousin and that
Appellant purchased the reportedly stolen shotgun. The defense also submitted a hunting
license Appellant purchased in October of 2013 that expired the following year. Further,
the defense pointed out that the firearms were discovered outside of the timeframe of the
conspiracy alleged in the Marijuana Indictment. Additionally, Appellant argued he was
entitled to an offense-level reduction for acceptance of responsibility based on his prompt
surrender to authorities, cooperation, and agreement to plead guilty.
The district court sustained Appellant’s objection to the amount of drugs
attributable to him but overruled each of his remaining objections. As to the firearm
possession enhancement, the district court discredited Santonio’s testimony and reasoned
that although law enforcement discovered the guns outside of the timeframe of illegal
activity alleged in the Marijuana Indictment, the surrounding circumstances suggested
3
The PSR did not address Appellant’s eligibility for a safety valve reduction.
7
Appellant was dealing marijuana when law enforcement arrested him and discovered the
firearms. And “because of the weapon enhancement,” the district court held, “the safety
valve would not . . . apply.” J.A. 178. Finally, the district court declined to adjust
Appellant’s sentence for acceptance of responsibility because he resumed his criminal
activity after his first arrest.
In light of these rulings, the court arrived at a total offense level of 30 and criminal
history category of I, resulting in a final Guidelines range of 97 to 121 months’
imprisonment. The district court then varied upward from this advisory range and
sentenced Appellant to 161 months’ imprisonment. To arrive at this sentence, the court
imposed 40 months for both counts related to the marijuana charges to run concurrently,
and 121 months for the cocaine charges to run consecutive to the sentence for the
marijuana charges. Appellant timely appealed.
II.
“As a general matter, in reviewing any sentence whether inside, just outside, or
significantly outside the Guidelines range,” we review for an abuse of discretion. United
States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017) (internal quotation marks omitted)
(quoting Gall v. United States, 552 U.S. 38, 41 (2007)). Pursuant to this standard, we
review the district court’s legal conclusions de novo and factual findings for clear error.
United States v. Gomez-Jimenez, 750 F.3d 370, 379–80 (4th Cir. 2014), as corrected
(Apr. 29, 2014). We first review for procedural errors; “[i]f and only if,” we find no such
procedural errors may we assess the substantive reasonableness of a sentence.
8
McDonald, 850 F.3d at 643 (alteration in original) (quoting United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009)).
III.
A.
We begin by reviewing two facets of the district court’s sentencing procedure: (1)
its offense level enhancement pursuant to Guidelines § 2D1.1(b)(1), which allows an
enhancement if a firearm “was possessed” in connection with a drug trafficking offense
unless the connection between the firearm and the offense was “clearly improbable”; and
(2) its refusal to decrease Appellant’s offense level pursuant to Guidelines
§ 2D1.1(b)(17), which allows a safety valve decrease if, in relevant part, a defendant
“did not . . . possess a firearm . . . in connection with the offense,” § 5C1.2(a)(2). As to
procedural sentencing issues, we “must reverse if we find error, unless . . . the error was
harmless.” Gomez-Jimenez, 750 F.3d at 379. A procedural error is harmless if “(1) the
district court would have reached the same result even if it had decided the guidelines
issue the other way, and (2) the sentence would be reasonable even if the guidelines issue
had been decided in the defendant’s favor.” Id. at 382 (internal quotation marks omitted)
(quoting United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011)).
Appellant argues the district court erred on both issues, and even if it did not err
on the firearm enhancement issue, the district court erroneously assumed that the
enhancement foreclosed a safety valve reduction. We conclude, however, that the district
court did not err by imposing the firearm enhancement, and even if the district court erred
9
by assuming it could not grant a safety valve reduction because of the firearm
enhancement, any such error was harmless.
1.
For drug trafficking offenses, the Guidelines define various “Specific Offense
Characteristics” providing for offense-level enhancements where applicable. United
States v. Manigan, 592 F.3d 621, 628 (4th Cir. 2010) (quoting U.S.S.G. § 2D1.1(b)). The
first of these enhancements reads in full, “If a dangerous weapon (including a firearm)
was possessed, increase by two levels.” U.S.S.G § 2D1.1(b)(1). With regard to this
enhancement, Guidelines commentary indicates that it applies if a defendant possesses a
firearm in connection with a drug trafficking offense: “The enhancement should be
applied if the weapon was present, unless it is clearly improbable that the weapon was
connected with the offense.” Id. cmt. n.11(A). Thus, for the enhancement to apply, the
Government carries the initial burden of “proving possession of a weapon in connection
with drug activities” by a preponderance of the evidence. Manigan, 592 F.3d at 632 n.8.
If the Government satisfies this burden, the defendant may avoid the enhancement by
showing that the weapon’s link to his or her drug activities was “clearly improbable.” Id.
In order for the Government to meet its burden, it must prove that the defendant
possessed a weapon “in connection with drug activity that was part of the same course of
conduct or common scheme as the offense of conviction.” Manigan, 592 F.3d at 628–29
(quoting United States v. McAllister, 272 F.3d 228, 233–34 (4th Cir. 2001)). Although
the Government need not prove “precisely concurrent” drug trafficking and weapon
possession, United States v. Johnson, 943 F.2d 383, 386 (4th Cir. 1991), it must at least
10
prove “a temporal and spatial relation” linking “the weapon, the drug trafficking activity,
and the defendant,” United States v. Clark, 415 F.3d 1234, 1241 (10th Cir. 2005)
(quoting United States v. Roederer, 11 F.3d 973, 982 (10th Cir.1993)) (rejecting
enhancement where defendant possessed gun 15 months after offense of conviction but
admitted to drug sales two days earlier); accord United States v. Partida, 385 F.3d 546,
562 (5th Cir. 2004). In circumstances where the underlying offense is conspiracy to
distribute drugs, we have held that discovery of a weapon “in a place where the
conspiracy was carried out or furthered” is sufficient to link the weapon to the
conspiracy. United States v. Apple, 962 F.2d 335, 338 (4th Cir. 1992).
If the Government meets the initial burden, a defendant may prove that such link
is clearly improbable by presenting circumstantial evidence, such as the type of weapon
involved and its location or accessibility. See Manigan, 592 F.3d at 629. For example,
courts agree that handguns are more likely to be connected with drug trafficking than
long guns. See id. (collecting cases). Indeed, commentary to the Guidelines provides
such an example: “the enhancement would not be applied if the defendant, arrested at the
defendant’s residence, had an unloaded hunting rifle in the closet.” § 2D1.1 cmt.
n.11(A).
a.
Here, law enforcement discovered the firearms underlying Appellant’s sentence
enhancement in December 2014, almost two years after the end of the marijuana
conspiracy to which Appellant plead guilty, which, as stated in the Marijuana Indictment,
continued until February 2013. Because law enforcement located the firearms in
11
Appellant’s bedroom along with 400 grams of marijuana and $912 in cash, however, this
temporal stretch is insufficient to sever the discovery of the firearms from “the same
course of conduct or common scheme as the offense of conviction.” Manigan, 592 F.3d
at 628–29 (citation omitted). Indeed, we have held that the conduct relevant to such
enhancement is not confined to the crime of conviction, but may include drug amounts,
money from drug sales, and guns possessed while engaging in drug sales, “related to,
though not distinct from, the crime of conviction.” United States v. Falesbork, 5 F.3d
715, 720 (4th Cir. 1993) (collecting cases).
b.
As to Appellant’s attempt to show that the firearms were connected to hunting and
thus any link to drug distribution was “clearly improbable,” Manigan, 592 F.3d at 632
n.8, the district court discredited Santonio’s testimony because he was unaware that
Appellant was involved in the drug trade. This, in the court’s view, rendered the
testimony insufficient to overcome the fact that the firearms were located alongside
amounts of cash and drugs indicating illicit trafficking. We “accord the district court’s
credibility determinations great deference.” United States v. McKenzie-Gude, 671 F.3d
452, 463 (4th Cir. 2011) (internal quotation marks omitted) (quoting United States v.
Layton, 564 F.3d 330, 334 (4th Cir. 2009)). Thus, although the discovery of the long
guns in Appellant’s residence nearly two years after the marijuana conspiracy alone
might not suffice to trigger the enhancement, see § 2D1.1 cmt. n.11(A), viewed alongside
the cash and marijuana at the scene of discovery, the link between the firearms and
12
Appellant’s offense was not clearly improbable. We therefore affirm the district court’s
imposition of a firearm enhancement pursuant to § 2D1.1(b)(1).
2.
In drug trafficking cases, the Guidelines grant a reduction of two offense levels if
the defendant meets the criteria of Guidelines § 5C1.2(a)(1)–(5). See U.S.S.G.
§ 2D1.1(b)(17). This is referred to as the “safety valve” reduction because it allows
shorter sentences for first-time offenders otherwise facing mandatory minimum
sentences. See United States v. Fletcher, 74 F.3d 49, 56 (4th Cir. 1996). To receive the
reduction, a defendant must prove by a preponderance of the evidence that he or she
satisfies each of § 5C1.2(a)’s five criteria. See United States v. Aidoo, 670 F.3d 600, 607
(4th Cir. 2012); United States v. Thompson, 554 F.3d 450, 455 (4th Cir. 2009).
a.
Here, the parties only dispute whether Appellant meets one of the safety valve
criteria -- that Appellant “did not . . . possess a firearm . . . in connection with the
offense.” § 5C1.2(a)(2). 4 The Government argues the safety valve reduction is
inapplicable because Appellant “failed to show that it was clearly improbable that his
possession of the weapons was connected to the charged offense.” Appellee’s Br. 18. In
4
The other four criteria are as follows: (1) “the defendant does not have more than
1 criminal history point”; (2) “the offense did not result in death or serious bodily injury
to any person”; (3) “the defendant was not an organizer, leader, manager, or supervisor of
others in the offense”; and (4) “not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the same course of
conduct or of a common scheme or plan . . . .” § 5C1.2(1), (3)–(5).
13
doing so, however, the Government invokes the standard of proof applicable to a weapon
enhancement rather than a safety valve reduction, that is, “clearly improbable” rather than
“preponderance of the evidence.” This is not a distinction without a difference.
Indeed, at least five of our sister circuits have held that a weapon enhancement
pursuant to § 2D1.1(b)(1) does not foreclose a safety valve reduction despite
§ 5C1.2(a)(2)’s requirement that a defendant seeking the reduction did not possess a
firearm in connection with the offense. See, e.g., United States v. Carillo-Ayala, 713
F.3d 82, 91 (11th Cir. 2013); United States v. Anderson, 452 F.3d 87, 90 (1st Cir. 2006);
United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1188 (10th Cir. 2004); United States
v. Bolka, 355 F.3d 909, 914 (6th Cir. 2004); United States v. Nelson, 222 F.3d 545, 549–
51 (9th Cir. 2000). These holdings are based on the different standards of proof
applicable to, on one hand, overcome a § 2D1.1(b)(1) firearm enhancement, and on the
other hand, satisfy § 5C1.2(a)(2) to obtain a safety valve reduction. Whereas a defendant
may be unable to show that any connection between a firearm and an offense is “clearly
improbable,” the same defendant might be able to prove “by a preponderance of the
evidence” that the firearm was not connected with the offense to satisfy § 5C1.2(a)(2).
See, e.g., Anderson, 452 F.3d at 90; Bolka, 355 F.3d at 914.
b.
At Appellant’s sentencing hearing, the district court did not clearly apply separate
analyses to determine whether the firearm enhancement applied as opposed to the safety
valve reduction. Compare J.A. 178 (“[B]ecause of the weapon enhancement, the safety
valve would not otherwise apply regardless of where the Court falls in terms of
14
acceptance of responsibility.”), with id. at 180 (“[I]n connection with [Appellant’s
marijuana distribution, Appellant] possessed a firearm.”). Nevertheless, even if the court
circumscribed its analysis on the safety valve reduction in light of the weapon
enhancement, we conclude that such error was harmless.
The district court’s decision in this regard was well reasoned. The court
discredited Appellant’s witness, made note of the fact that the proffered hunting license
was expired when law enforcement discovered the firearms, and reasoned that the status
of the shotgun as reportedly stolen “undermines any suggestion of a legitimate
acquisition.” J.A. 180. Given these factual findings, Appellant failed to show by a
preponderance of the evidence that the firearms were not connected to his drug
distribution, which the cash and drugs located in the very same bedroom evinced.
Therefore, we conclude that even assuming the district court erred in its safety valve
analysis, any such error was harmless, and we affirm the district court’s refusal to grant a
safety valve reduction. See Gomez-Jimenez, 750 F.3d at 382.
B.
We next consider the district court’s refusal to reduce Appellant’s offense level for
acceptance of responsibility. Section 3E1.1(a) of the Guidelines provides for a two-level
reduction “[i]f [a] defendant clearly demonstrates acceptance of responsibility for [an]
offense.” “To earn the reduction, a defendant must prove to the court by a preponderance
of the evidence ‘that he has clearly recognized and affirmatively accepted personal
responsibility for his criminal conduct.’” United States v. Dugger, 485 F.3d 236, 239
(4th Cir. 2007) (quoting United States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996)). In
15
determining whether a defendant has satisfied this standard, a sentencing court may
consider, in relevant part, (a) truthful admissions to the underlying offenses or related
conduct; (b) voluntary withdrawal from crime; (c) voluntary and prompt surrender to
authorities; and (d) the timeliness of the defendant’s apparent acceptance of
responsibility. See § 3E1.1(a) cmt. n.1.
Here, Appellant argues the district court erred in refusing to grant a reduction
because he voluntarily surrendered to authorities after the court revoked his pretrial
release, admitted to his offense conduct while debriefing with law enforcement, and
promptly pled guilty to the offenses. But this argument understates Appellant’s conduct.
Despite the post-apprehension conduct Appellant highlights, he fails to mention
that after his first arrest, he resumed distributing drugs. Indeed, while under indictment
and on bond, Appellant upped the ante and distributed cocaine in addition to marijuana.
We have upheld denials of reductions for acceptance of responsibility where, as here, the
defendant continues criminal activity after apprehension, indictment, or guilty plea. See,
e.g., Dugger, 485 F.3d at 240 (affirming denial of reduction where defendant admitted
dealing drugs before and after incarceration); United States v. Kidd, 12 F.3d 30, 34 (4th
Cir. 1993) (upholding denial of reduction where defendant continued cocaine use and
distribution after indictment and plea agreement).
In light of Appellant’s resumption of criminal activity after his first arrest, we hold
that the district court did not err in refusing to grant a reduction. This is especially so
given the “great deference” we accord to sentencing courts in making such
16
determinations. § 3E1.1 cmt. n.5. We therefore affirm the district court’s denial of a
sentence reduction for acceptance of responsibility.
C.
Finally, we assess the substantive reasonableness of Appellant’s sentence, taking
note of the district court’s upward variance from the advisory range of 97 to 121 months’
imprisonment to the sentence imposed of 161 months’ imprisonment. A sentencing court
must “impose a sentence sufficient, but not greater than necessary,” to serve the purposes
of the Guidelines and factors enumerated in 18 U.S.C. § 3553(a). McDonald, 850 F.3d at
643 (citation omitted). Those factors include the seriousness of the offense, promotion of
respect for the law, deterrence, protection of the public, and correctional treatment for a
defendant. See § 3553(a)(2).
We review a variant sentence to determine the reasonableness of imposing such
sentence and the extent of the variance from the Guidelines range. See United States v.
Washington, 743 F.3d 938, 943–44 (4th Cir. 2014). We will vacate such sentence if its
stated reasoning is inadequate or if it relies on improper factors. See United States v.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). “We must defer to the district
court and affirm a reasonable sentence, even if we would have imposed something
different.” Washington, 743 F.3d at 943–44 (citing United States v. McNeill, 598 F.3d
161, 166 (4th Cir. 2010)).
Here, although the district court varied upward from Appellant’s Guidelines range
by 40 months, the sentence was not unreasonable. In arriving at its sentence, the district
court relied on factors enumerated in § 3553(a)(2), including “the need to deter criminal
17
conduct, protect the public from further crimes . . . , and . . . to promote respect for the
law.” J.A. 284. The district court noted Appellant’s minimal criminal history and that he
“deserve[d] some credit for pleading guilty in both cases and admitting his conduct.” Id.
Nevertheless, the district court emphasized that Appellant resumed his drug distribution
only two months after his September 2012 arrest, and again two months after his
December 2014 arrest while released on bond. In addition, the district court recounted
how Appellant requested a modification to the terms of his release allowing him to
remove an electronic monitor and return to work, but shortly after the court granted this
request, law enforcement discovered Appellant was again dealing drugs. The district
court reasoned that neither Appellant’s Guidelines calculation nor his criminal history
adequately took account of these particular facts. Taken as a whole, the district court
provided adequate reasoning for its sentence and did not rely on improper factors. See
Hernandez-Villanueva, 473 F.3d at 123.
As to the length of Appellant’s sentence and its variance from his Guidelines
range, we have upheld comparatively greater variances given a firm application of the
§ 3553 factors. See, e.g., Hernandez-Villanueva, 473 F.3d at 123 (upholding sentence
three times as long as upward end of Guidelines range given district court’s conclusion
that range did not fully account for defendant’s criminal behavior). Appellant’s sentence
was therefore substantively reasonable. We thus affirm the district court’s upward
variance and ultimate sentence.
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IV.
Based on the foregoing, we affirm Appellant’s sentence.
AFFIRMED
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